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Home My WebLink About93-501 FrankhouserDear Mr. Frankhouser: Mr. Thomas Frankhouser South Union Township Supervisor South Union Township R.D. #2, Box 623 Township Drive Uniontown, PA 15401 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 5, 1993 93 -501 Re: Simultaneous Service, Township Supervisor and Member of Township Sewage Authority. This responds to your letters of November 18, 1992, and December 2, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a township supervisor from also serving as a member of a township sewage authority. Facts: As an elected Township Supervisor of South Union Township, you request an advisory from the State Ethics Commission. You state that you have been asked to also accept an appointment to the South Union Township Sewage Authority. Since municipalities frequently contract with municipal authorities, set compensation, appoint new members and guarantee the bond obligations, you ask whether your prospective simultaneous service in these two positions would present a conflict of interest and be unethical. Discussion: As a Township Supervisor for South Union Township, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. If you would be appointed to serve on the South Union Township Sewage Authority, you would be considered a "public official" subject to the provisions of the Ethics Law in that position as well. 65 P.S. S402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Mr. Thomas Frankhouser January 5, 1993 Page 2 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Before applying the above provisions of the Ethics Law to the question which you have submitted, two points must initially be noted. First, it is noted that you have affirmatively represented and assured this Commission that your request for an advisory pertains to your own prospective conduct rather than to that of a third party. Second, it is noted that the facts which you have submitted do not reveal whether the South Union Township Sewage Authority is a Mr. Thomas Frankhouser January 5, 1993 Page 3 part of the Township or is in fact a separate governmental body. This Advice expressly assumes that the South Union Township Sewage Authority is a separate governmental body. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising merely from simultaneous service as a public official in both capacities as a Township Supervisor for South Union Township and as a Member of the South Union Township Sewage Authority. Basically, the Ethics Law does not state that it is inherently incompatible for a public official to simultaneously serve as a township supervisor and as a township sewage authority member. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are inherently adverse to each other. This conclusion, however, is expressly conditioned upon the assumption that the South Union Township Sewage Authority is a separate governmental body from the Township. Were the Authority to be part of the Township rather than a separate governmental body, your proposed simultaneous service would appear to be prohibited under the Second Class Township Code which specifically enumerates the only other township positions which a township supervisor may hold. See, 53 P.S. §S65410(b), 65514. Turning to the question of conflict of interest, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/ public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Should a situation arise where the use of authority of public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. Thus, for example, you clearly would have a conflict and could not participate in appointing yourself to the South Union Township Sewage Authority, nor could you vote to set your own salary for serving on that Authority. See, Koslow, Order No. 458 -R; aff'd., Koslow v. State Ethics Commission, 116 Pa. Cmwlth. 19, 540 A.2d 1374 (Pa. Commw. Ct. 1988), alloc. den., Pa. , 553 A.2d 971 (1988). In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed Mr. Thomas Frankhouser January 5, 1993 Page 4 with the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Township Supervisor for South Union Township, you are a "public official" subject to the provisions of the Ethics Law. If you would be appointed to serve as a member of the South Union Township Sewage Authority, you would be considered a "public official" subject to the Ethics Law in that position as well. As a public official, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of South Union Township Supervisor and South Union Township Sewage Authority Member, subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. V truly yours, (- Vincent J. Dopko, Chief Counsel